In this recent decision, Adjudicator Sandeep Johal addressed a preliminary issue involving the applicable limitation period under the SABS for minor applicants.
In this case, the Applicant was 15 years old at the time of the accident and Aviva denied benefits before the Applicant turned 18. The Applicant commenced her appeal of Aviva’s determination within two years of turning 18 years old, however, the application was brought more than two years after the benefits were denied. Adjudicator Johal found that the Limitations Act did not apply to the SABS and the limitation period therein.
Aviva submitted that section 280(4) Insurance Act establishes that all accident benefits disputes shall be resolved in accordance with the SABS and there is no incorporation of the Limitations Act and further, that the SABS sets out the complete set of parameters when disputing accident benefits. The Applicant’s position was that the limitation period did not begin on the denial dates because she was a minor and not represented by a litigation guardian, relying on section 6 of the Limitations Act.
The Applicant relied upon a decision in which the Limitations Act was applied to the SABS (17-003732 v. Royal and Sun Alliance). Adjudicator Johal found that that decision did not address section 2 of the Limitations Act by which the statute applies to “claims pursued in court proceedings.” Adjudicator Johal found that the Limitations Act does not apply to tribunals such as the LAT.
The Applicant also submitted that a hard limitation period should not apply to her dispute because of the Court of Appeal decision, Tomec v. Economical. The Applicant argued that confusion was created by allowing minors to dispute claims after two years in court proceedings but denying that right to minors at tribunals. Adjudicator Johal found that Tomec did not apply since the Applicant was not prematurely denied benefits and her claim was not subject to discoverability.
Adjudicator Johal concluded that the power of the LAT exists according to statutes and no legislative provision exists that imports the Limitations Act into the SABS, stating “In my view, the Tribunal derives its power and authority from statute. Similarly, the Tribunal is bound by the language of a statute, such as s. 2 of the Limitations Act [This Act applies to claims pursued in court proceedings…]. Furthermore, I have not been pointed to any evidence, any section of the Schedule or any other Act that would allow me to import the Limitation Act’s requirements regarding minors into the Schedule.”
Adjudicator Johal did however accept that the LAT has jurisdiction to extend the limitation period in accordance with section 7 of the LAT Act. The Applicant was not able to satisfy her onus that an extension should be granted.
There are several takeaways from Adjudicator Johal’s findings. First, while novel, Adjudicator Johal’s analysis is persuasive. The SABS is a complete code for accident benefits disputes and no provision or statute states that the limitation period for minors begins to run only when they turn 18. Nor is there any provision that imports the Limitations Act into accident benefits disputes. That being said, the Applicant’s argument about minors having different rights in a court and a tribunal is noteworthy. While Adjudicator Johal’s analysis may be adopted in subsequent decisions, the fact that minors have fewer rights at the LAT could result in legislative amendments to the SABS or the Limitations Act.
Brendan Sheehan is author of this blog and member of the Licence Appeal Tribunal group. If you have a question about this decision or a similar file, please contact Brendan at 416-777-52542.